M.1. A group of persons acting with a common purpose attempted or committed the crime

M.1.1. The crime was attempted of committed.

M.1.2. The crime was attempted or committed by a group of persons.

M.P.1. Evidence of a crime being committed a group of persons.

M.1.3. The group of persons who attempted or committed the crime had a common purpose.

M.P.3. Evidence of the existence of a common purpose.

M.P.3.1. Statements, reports, documents, orders indicating the existence of a purpose.

M.P.3.2. Evidence of actions taken by a group in implementation of a stated, reported etc purpose.

M.P.3.3. Evidence of institutions, structures, meetings for the carrying out of a common purpose.

M.P.3.4. Evidence of preparations carried out together by a group.

M.P.3.5. Evidence of actions taken by a group in unison or in a cooperative or systematic manner.

M.P.3.6. Evidence of acts which occur on a widespread or systematic basis.

M.P.3.7. Evidence of reception of the accused at the scene of the crime.

M.1.4. The common purpose included an element of criminality

M.1. A group of persons acting with a common purpose attempted or committed the crime

M.1.1. The crime was attempted of committed.

A. Evidentiary comment:

Although the chapeau of article 25(3)(d) refers simply to "a crime" rather than "a crime within the jurisdiction of the Court", this would appear to be the meaning that is appropriate, both in the light of the purpose of the provision, and the use of the latter phrase in paragraph (i) of the section.

No definition of the terms "commission" or "attempted commission" is given, however it seems reasonable to assume that these terms apply to situations in which articles 25(3)(a) and 25(3(f), respectively, apply.

M.1.2. The crime was attempted or committed by a group of persons.

A. Evidentiary comment:

According to the jurisprudence of the ICTY, a joint criminal enterprise may be carried out where a crime is committed by a "plurality of persons" (Tadić Appeals Judgment, para. 227, and numerous decisions following it), suggesting that the involvement of two or more persons is sufficient to meet this requirement. Some decisions specifically refer to "two or more persons" (Kvočka Trial Judgment, para. 307, Vasiljević Trial Judgment, para. 66; Simić Trial Judgment, para. 158) However the use of the term "group" in article 25 (3) (d) of the Rome Statute, has led one commentator to suggest that a group of at least three persons is required (Eser, in Cassese et al. vol.1, p.802: on the basis that a "group" must be distinguished from a "couple").

At least according to the ICTY and ICTR, the group need not be organised in a military, political or administrative structure (Tadić Appeals Chamber at 227, Ntakirutimana Appeals Judgment, para. 466), although in practice it often will be.

The ICTY has apparently required that the accused person him/herself be a member of the group (see eg Brđanin Trial Chamber, paras. 346 – 347, 353 – 354). It is not clear whether this will be necessary under article 25(3)(d). In particular, the reference to "contributing" to a crime committed by a group, rather than "participating" as required by the ICTY (see below) may indicate that the accused may be a person outside the group.

M.P.1. Evidence of a crime being committed a group of persons.

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1072:

"1072. […] This plan emanated from the highest echelons of the VRS Main Staff, including Mladic, the Commander of the VRS. The VRS Security Branch planned, organised and implemented the murder operation. The Drina Corps, MUP, Bratunac Brigade and Zvornik Brigade, along with other units detailed above, were also implicated in the murder operation. The Trial Chamber is therefore convinced beyond reasonable doubt that there was a plan involving a plurality of persons to murder the able-bodied Bosnian Muslim males from Srebrenica, and that these persons participated in the common purpose and shared the intent to murder."

Prosecutor v Milan Martić, Case No. IT-95-11-T, Judgement (TC), 12 June 2007, para. 446:

"(b) Plurality of persons

446. The Trial Chamber has been furnished with a substantial amount of evidence that the objective to unite Serb territories was espoused by the leaderships in Serbia, in the RS in BiH, and in the SAO Krajina and the RSK. The SAO Krajina, and later the RSK, government which included Milan Babić and Milan Martić, sought and received significant financial, logistical and military support from Serbia, including from the MUP and SDB of Serbia, and from the RS in BiH. Milan Martić also admitted that he had himself "personally never ceased this cooperation" and that there was "good cooperation with the leadership of Serbia, notably the [MUP]." In fact, the evidence shows that the police of the SAO Krajina were mainly financed with funds and material from the MUP and the SDB of Serbia. This support continued from 1991 to 1995 and even included modifications regarding units and personnel within the armed forces of the SAO Krajina and of the RSK. There is evidence that the cooperation between the armed forces of the SAO Krajina, and later the RSK, and the JNA was extensive and covered such major military actions as those carried out in Kijevo, Hrvatska Kostajnica, Saborsko and in ?kabrnja, as well as operation Koridor 92. In this respect, the Trial Chamber recalls the evidence that the SVK and the VJ were in reality one and the same organisation, only located at two separate locations. Moreover, the evidence of Milan Martić’s arrest in 1991 gives a clear example of joint cooperation between political leaders in the SAO Krajina, in the RS in BiH and in Serbia. The Trial Chamber has been furnished with evidence that this type of cooperation continued until 1995. The Trial Chamber therefore finds that at least Blagoje Adžić, Milan Babić, Radmilo Bogdanović, Veljko Kadijević, Radovan Karadžić, Slobodan Milošević, Ratko Mladić, Vojislav ?ešelj, Franko"Frenki" Simatović, Jovica Stanišić, and Captain Dragan Vasiljković participated in the furtherance of the above-mentioned common criminal purpose."

Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, paras. 1086-1088:

"1086. It is clear that paragraph 7 of the indictment alleges a JCE consisting of a large and indefinite group of persons. The Chamber does not find it possible on the evidence to specify fully the membership of the JCE; and even if it were possible, it is neither desirable nor necessary to do so. What is necessary is to be convinced that the Accused was sufficiently connected and concerned with persons who committed crimes pursuant to the common objective in various capacities, or who procured other persons to do so.

1087. The Chamber finds that the JCE of which the Accused was a member consisted of persons situated throughout the territories of the Bosnian-Serb Republic. There was a Pale based leadership component of the group, including, but not limited to, the Accused, Radovan Karadžić, Biljana Plavšić, Nikola Koljević, Momčilo Mandić, Velibor Ostojić, Mićo Stanišić, and, as of 12 May 1992, General Ratko Mladić. The JCE rank and file consisted of local politicians, military and police commanders, paramilitary leaders, and others. It was based in the regions and municipalities of the Bosnian-Serb Republic, and maintained close links with Pale.

1088. The local component included Arkan (?eljko Ražnatović),TPF Dr Beli (proper name Milenko Vojnović: a local SDS official, deputy to the Bosnian-Serb Assembly, and SDS Main Board member), Mirko Blagojević (paramilitary leader)T Radoslav Brđanin ARK crisis staff president and deputy to Bosnian-Serb Assembly), Simo Drljača (chief of Prijedor SJB), Rajko Dukić (president of SDS Executive Board and SDS Main Board member) Gojko Kličković (president of Bosanska Krupa war presidency and SDS Main Board member)T "Vojo" Kuprešanin (president of ARK and SDS Main Board member),T Rajko Kušić (SDS leader of Rogatica, paramilitary leader, and SDS Main Board member)FPT Mauzer (paramilitary leader; proper name Ljubiša Savić),TPF Jovan Mijatović (member of Zvornik crisis staff and deputy to Bosnian-Serb Assembly)PT Veljko Milanković (paramilitary leader),TPF Nedeljko Rašula (president of Sanski Most municipal assembly and deputy to Bosnian-Serb Assembly),TFPT Momir Talić (commander of 1st Krajina Corps),FPT Jovan Tintor (president of Vogošća crisis staff and SDS Main Board member),T Vojin (?ućo) Vučković (paramilitary leader)PT and Stojan ?upljanin (chief of Banja Luka SJB) PT among others."

But see Appeals Chamber’s findings Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-A, Judgement (AC), 17 March 2009, para. 157:

"157. The issue before the Appeals Chamber is whether the Trial Chamber’s finding in paragraph 1087 that the JCE included a "rank and file consist[ing] of local politicians, military and police commanders, paramilitary leaders, and others" was erroneously unspecific as far as this finding is not further specified by the rank and file JCE members individually named in paragraph 1088. The Appeals Chamber finds that the Trial Chamber indeed erred in this respect. The Trial Chamber failed to specify whether all or only some of the local politicians, militaries, police commanders and paramilitary leaders were rank and file JCE members. Furthermore, the finding in paragraph 1087 does not refer to any time period that could further specify who was found to be a rank and file JCE member. Also, the reference to the geographical scope ("regions and municipalities of the Bosnian- Serb Republic") is too broad to dispel the ambiguity as to whom the Trial Chamber found was a rank and file JCE member in paragraph 1087. Therefore, inasmuch as the Trial Chamber included persons in the JCE merely by reference to the JCE "rank and file consist[ing] of local politicians, military and police commanders, paramilitary leaders, and others", its identification of the JCE members is impermissibly vague. Sub-ground 3(A) submitted by Amicus Curiae is therefore granted."

Prosecutor v. Aloys Simba, Case No. ICTR-2001-76-T, Judgement (TC), 13 December 2005, para. 402:

"402. In the Chamber’s view, the only reasonable inference from the evidence is that a common criminal purpose existed to kill Tutsi at these three sites. The Chamber will discuss the extent to which Simba shared this common purpose below. The Chamber finds that the massive scale and relative efficiency of the slaughter by necessity demanded the involvement of a plurality of persons, each carrying out a particular role at one or more of the massacres. In addition to the physical perpetrators of the crimes, other prominent participants in the enterprise included Simba, Prefect Bucyibaruta, Captain Sebuhura, and Bourgmestre Semakwavu."

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 320:

"320. Crimes in the Omarska camp were committed by a plurality of persons. Indeed, they could only have been committed by a plurality of persons, as the establishment , organization, and functioning of the camp required the participation of many individuals playing a variety of roles and performing different functions of greater or lesser degrees of importance. The joint criminal enterprise pervading the camp was the intent to persecute and subjugate non-Serb detainees. The persecution was committed through crimes such as murder, torture, and rape and by various means, such as mental and physical violence and inhumane conditions of detention."

Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-A, Judgement (AC), 17 March 2009, paras. 225-226 and 598 :

"225. In the Brđanin Appeal Judgement, the Appeals Chamber held that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member – when using the principal perpetrators – acted in accordance with the common objective.560 Such a link is established by a showing that the JCE member used the non- JCE member to commit a crime pursuant to the common criminal purpose of the JCE.561

226. The establishment of a link between the crime in question and a member of the JCE is a matter to be assessed on a case-by-case basis.562 Factors indicative of such a link include evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime. However, it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that he knew of the existence of the JCE; what matters in JCE Category 1 is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose.563"

560 Brđanin Appeal Judgement, paras 413, 430. See also Martić Appeal

Judgement, para. 168.

561 Brđanin Appeal Judgement, para. 413. See also Limaj et al. Appeal Judgement, para. 120.

562 Brđanin Appeal Judgement, para. 413. Martić Appeal Judgement, para. 169.

563 Brđanin Appeal Judgement, para. 410.

"598. Krajišnik first submits that a JCE cannot consist of participants at a leadership level unless they use the principal perpetrators as their "instruments". This was not the case here, he argues, because he never "made any arrangements with anyone" and he did not act in concert with principal perpetrators of crimes.1565 The Appeals Chamber recalls that an accused can be held liable for crimes committed by non-JCE members when these crimes can be imputed to a JCE member who – when using the principal perpetrators – acted in accordance with the common objective;1566 it is not necessary to show that the accused entered into an agreement or acted in concert with non-JCE members physically perpetrating the crimes.1567 Whether the physical perpetrators of the crimes committed in the case at hand were used by one or more JCE members has already been considered, and the Appeals Chamber refers to its earlier discussion of this question.1568"

1565 Krajišnik’s Appeal Brief, paras 49, 60.

1566 Brđanin Appeal Judgement, paras 413, 430. Martić Appeal Judgement, para. 168.

1567 Brđanin Appeal Judgement, para. 418.

1568 See supra III.C.11.

M.1.3. The group of persons who attempted or committed the crime had a common purpose.

A. Evidentiary comment:

The jurisprudence of the ICTY requires proof of "the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute." The case law of the ICTY is therefore not entirely on point with what may be required under article 25(3)(d), for several reasons:

(1) Whereas article 25(3)(d) speaks of a "common purpose", the ICTY requirements refer to a "common plan, design or purpose". It may be that this is wider than a "common purpose", however since the jurisprudence of the ICTY has not analysed the difference, if any exists, between a plan, a design and a purpose, it is difficult to say whether there are cases of common "plans" or "designs" that would not fall within the scope of article 25(3)(d).

(2) Under the ICTY requirements the common plan, design or purpose must itself amount to or involve the commission of a crime under the statute. The Rome Statute, however only requires that those who commit or attempt to commit the relevant crime are acting with a common purpose of some sort. That is to say, it appears that the common purpose need not itself necessarily amount to or involve the commission of a crime (although the requirement that the group commits the crime "acting with" a common purpose may require that the crime is committed in fulfilment or furtherance of the purpose: see 1.4 below). In practice, it seems likely that in most, if not all cases where a crime is committed by a group of persons with a common purpose, that the common purpose will involve the commission of a crime. However, it may also be possible that a group of persons who have a common purpose which does not the commission of a crime, nonetheless commits or attempts to commit a crime. In this sense then, article 25(3)(d) catches a wider range of situations than the requirements of the ICTY. Therefore, while examples from the ICTY in relation to this element are relevant, they will cover only a more restrictive category of the cases potentially amounting to a common purpose under the Rome Statute.

(3) The requirement of a "common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute," which was set out by the ICTY in the Tadić Appeals Judgment, has since been interpreted by the Tribunal has requiring that there be "an arrangement or understanding amounting to an agreement" between the members of the group (Vasiljević Trial Judgment at para. 66). This has been said to involve a "mutual understanding or arrangement" between the individuals in the group to commit a crime, including the accused (Brđanin Trial Judgment, para. 352, emphasis original). In Brđanin this meant that although the group identified by the Trial Chamber as the accused and the perpetrators of the crime had a common purpose which was the implementation of the plan espoused by the Serb leadership, there was no understanding or agreement between the accused and the perpetrators of the crimes committed pursuant to the plan. The Chamber held that it could just as easily have been the case that the perpetrators and the accused were merely driven, independently of each other, to implement the plan espoused by the Serb leadership. A joint criminal enterprise was therefore found not to have existed. (But cf Krnojelac where the Appeals Chamber held that at least in the case of the "second" type of joint criminal enterprise there need be no agreement in respect of each of the crimes committed: Krnojelac Appeals Judgment, para. 97, followed in Kvočka Appeals Judgment para. 118).

There is no mention in article 25(3)(d) of any requirement for an agreement or mutual understanding. It is unclear whether such a requirement might be read into the common purpose provision by the Court. Proposals for a mode of liability based more closely on conspiracy (and therefore relating to agreement) proved controversial at the Rome conference and were ultimately rejected in favour of the current article 25(3)(d) and this may be a basis on which the Court might reject any requirement for an agreement between members of the group.

Importantly, the ICTY has also held that the common plan need not have been previously arranged and may be inferred "from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise" (Tadić Appeals Judgement, para. 227, Furundžija Appeals Judgment, para. 119, Brđanin Trial Judgment, para. 262, Simić Trial Judgment, para. 158). It is unclear how easily this approach can be reconciled with a possible requirement, as explained above, for evidence of a mutual agreement. However such a requirement may not exist under the Rome Statute.

M.P.3. Evidence of the existence of a common purpose.

M.P.3.1. Statements, reports, documents, orders indicating the existence of a purpose.

A. Legal source/authority and evidence:

Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-77-T, Judgement (TC), 18 JDecember 2008, para. 407

"407. Regarding the common plan, design or purpose, there were at least hundreds, if not over a thousand assailants who arrived, many of whom were armed with a range of weapons. They arrived together as part of a convoy, and participated in a meeting where the bourgemestre Bazabuhande, the Accused, and Director Jaribu, delivered speeches. In the Chamber’s view, the attack can only be described as a coordinated operation backed by Presidential Guards, soldiers, Interahamwe, and civilians, armed with guns, grenades and traditional weapons, with organisational support from prominent personalities, such as, the Accused, the bourgmestre and Jaribu. The Chamber considers that prior planning and coordination is the only reasonable explanation for the manner in which the perpetrators conducted the attack on Tutsi at Kesho Hill. Indeed, this finding is supported further as it appears that prior planning and coordination, resulting in a large number of well-armed assailants and the presence of officials to provide encouragement, distinguished this attack from the prior unsuccessful attack. Accordingly, the Chamber finds that the only reasonable inference from the evidence is that a common criminal purpose existed to kill Tutsi on Kesho Hill."

Prosecutor v Milan Martić, Case No. IT-95-11-T, Judgement (TC), 12 June 2007, paras. 443 and 445:

"443. The Trial Chamber recalls that several armed clashes occurred during the spring and early summer of 1991 between SAO Krajina and Croatian armed forces and formations. Initially, these clashes were the result of tensions between the Croatian and SAO Krajina police and the climate of fear and mistrust between the Serb and Croat inhabitants. The evidence shows that beginning with the armed attack on the predominantly Croat village of Kijevo in August 1991, the SAO Krajina MUP and TO forces cooperated with the JNA. As of this point in time, the JNA was firmly involved on the side of the SAO Krajina authorities in the struggle to take control of territory in order to unite predominantly Serb areas.1196 The Trial Chamber recalls the ultimatum given by Milan Martić on 26 August 1991 in relation to the imminent attack on Kijevo that "[y]ou and your leadership have brought relations between the Serbian and Croatian populations to such a state that further co-existence in our Serbian territories of the SAO Krajina is impossible".[…]"

"445. From at least August 1991, the political objective to unite Serb areas in Croatia and in BiH with Serbia in order to establish a unified territory was implemented through widespread and systematic armed attacks on predominantly Croat and other non-Serb areas and through the commission of acts of violence and intimidation. In the Trial Chamber’s view, this campaign of violence and intimidation against the Croat and non-Serb population was a consequence of the position taken by the SAO Krajina and subsequently the RSK leadership that co-existence with the Croat and other non-Serb population, in Milan Martić’s words, "in our Serbian territories of the SAO Krajina", was impossible. Thus, the implementation of the political objective to establish a unified Serb territory in these circumstances necessitated the forcible removal of the non-Serb population from the SAO Krajina and RSK territory. The Trial Chamber therefore finds beyond reasonable doubt that the common purpose of the JCE was the establishment of an ethnically Serb territory through the displacement of the Croat and other non-Serb population, as charged in Counts 10 and 11."

Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, paras. 1090:

"1090. The Chamber finds that the above allegations have been proven in relation to Article 5 of the Statute (crimes against humanity). The Bosnian-Serb leadership wanted to ethnically recompose the territories under its control by expelling and thereby drastically reducing the proportion of Bosnian Muslims and Bosnian Croats living there. In the word of a decision of representatives from Bihać, Bosanski Petrovac, Sprska Krupa, Sanski Most, Prijedor, Bosanski Novi, and Ključ, on 7 June 1992, "Muslims and Croats should move out of our municipalities until a level is reached where Serbian authority can be maintained and implemented on its own territory in each of these municipalities".

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 96 – 97, 103 – 104, 106, 120

"96. On 12 May 1992, Momcilo Krajisnik, the President of the National Assembly of the Serbian People of Bosnia and Herzegovina, signed the "Decision on Strategic Objectives of the Serbian People," which includes one objective relating to the area of Srebrenica, namely, to "establish a corridor in the Drina river valley, that is, eliminate the Drina as a border separating Serbian States."³⁰⁸

97. In November 1992, General Ratko Mladic issued Operational Directive 4, which outlined further operations of the VRS.³⁰⁹ Included in the Directive are orders to the Drina Corps to defend: "Zvornik and the corridor, while the rest of its forces in the wider Podrinje region shall exhaust the enemy, inflict the heaviest possible losses on him and force him to leave the Birac, Zepa and Goražde areas together with the Muslim population. First offer the able-bodied and armed men to surrender, and if they refuse, destroy them."³¹⁰"

"308. Ex. P686, Official Gazette of the Republika Srpska, Vol. II, No. 22, Article 386, "Decision on Strategic Objectives of the Serbian People in Bosnia and Herzegovina", dated 12 May 1992.

309. Ex. P400, VRS Main Staff Order 02/5-210, Operational Directive Four, 19 November 1992.

310. Ex. P400, VRS Main Staff Order, Operational Directive Four, p. 5."

"103 On 4 July 1994, Colonel Ognjenovic, the then-commander of the Bratunac Brigade, sent a report to the units of the Bratunac Brigade. In this report, he outlined the "final goal" of the VRS: "[…] an entirely Serbian Podrinje. The enclaves of Srebrenica, Zepa and Gorazde must be militarily defeated."³²³ This report continued:

104. A number of witnesses who were members of the Bratunac Brigade in 1994, testified that they did not consider this report to be an order.³²⁵ Testimony of other witnesses and documentary evidence show that the strategy was in fact implemented.³²⁶"

"323. Ex. D132/1, Report for the Bratunac Brigade members, No. 04-1738-1/94, dated 4 July 1994, para. 2

324. Ex. D132/1, Report for the Bratunac Brigade members, No. 04-1738-1/94, dated 4 July 1994, para. 2.

325. Dragoslav Trisic, T. 9397-98. Dragoslav Trisic testified that this report was an internal memorandum to boost morale, but that no one believed in it in 1994; Mico Gavric, T. 8527-29. Mico Gavri c considers the purpose of this document to be self promotion of Ognjenovic. He claims never to have received orders from Ognjenovic.
326. See supra section II. C. 3 and Ex. D173/1, Main Staff note of agreement with the Realisation of the Request of made by the Coordinating Board of the RS for Humanitariyan Aid, dated 2 April 1995; Ex. D174/1, Notice of Agreement with the UNHCR, Belgrade, Weekly Plan, dated 26 May 1995 and Ex. D177-1/1, Main Staff, Plan on Realisation of Approved Project, dated 19 May 1995, show that there was a structured effort to "make the enemy’s life unbearable" through a system of permits and checks for the convoys. For testimony regarding the permits and checks of convoys, See e.g. Jovan Ivic, T. 9618 -33."

"106. On 8 March 1995, the Supreme Commander of the RS Armed Forces, President Karadzic, issued Directive for Further Operations 7: "Planned and well-thought-out combat operations" were to create "an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of both enclaves."³²⁸ The separation of the Srebrenica and Zepa enclaves became the task of the Drina Corps.³²⁹ As a result of this directive, General Ratko Mladic on 31 March 1995 issued Directive for Further Operations, Operative No. 7/1, which further directive specified the Drina Corps’ tasks.³³⁰"

"328. Ex. P401, Republika Srpska Supreme Command Directive Seven, signed by Radovan Karadzic, forwarded to the 1st Krajina Corps on 17 March 1995, p. 10 (emphasis added).

329. Id.

330. Ex. P402, Main Staff Order, Directive for Further Operations, Operative No. 7/1, 31 March 1995."

"120. On 2 July, General Zivanovic, the commander of the Drina Corps, issued the Drina Corps order for active combat operations, code named "Krivaja 95".³⁸¹ The stated objective of the attack on the Srebrenica enclave was to reduce "the enclave to its urban area". The order included specific orders to Drina Corps subordinate units: the Bratunac Brigade, the Zvornik Brigade, the Milici Brigade and parts of the Skelani Brigade.³⁸² General Krstic, the Chief of Staff of the Drina Corps, was to command the operation.³⁸³ Preparations for the attack started immediately.³⁸⁴"

"381. Ex. P543, Drina Corps Order, Krivaja 95, Attack plan, 2 July 1995.

382. Id. The Skelani Brigade, along with units of the Zvornik Brigade, the Bratunac Brigade 3rd Battalion and the Drina Corps Mixed Artillery Regiment was stationed at Pribicevac. Ex. D229/1, Bozo Momcilovic, statement, p. 3.

383. Dragomir Zekic, T. 8940.

384. For instance, Dragomir Zekic, commander of the 3rd Battalion of the Bratunac Brigade, got an order from General Civanovic, to clear a passage through the minefields. Dragomir Zekic, T. 8867. However, Ljubomir Beatovic, an orderly with the Bratunac Brigade, testified that the medical unit was not notified of any upcoming activity and did not receive additional medical supplies. Earlier he had stated to the OTP that he had heard of the operation a few days before and that people were talking about it in town. Ljubomir Beatovic, T. 9697-98, 9720-21. Dragoslav Trisic had already requested extra materiel and ammunition. He did not receive everything he requested Trisic also testified that a earlier request for ammunition was not made because of the imminent attack on Srebrenica. Dragoslav Trisic, T. 9327-29, 9333-38, and Ex. D149/1, Request for equipment and materiel, dated 3 July 1995; Ex. P862, Preparatory order allocating equipment, dated 2 July 1995; Ex. D166/1, Series of materiel sheets listing received materiel and equipment, dated 5 July 1995 to 12 July 1995."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 349:

"349. The Trial Chamber has already established that during the second half of 1991, the Bosnian Serb leadership, including the members of the Main Board of the SDS and other members of the SDS, as well as Serb representatives of the armed forces, elaborated the Strategic Plan, aimed at linking Serb-populated areas in BiH together, gaining control over these areas and creating a separate Bosnian Serb state, from which most non-Serbs would be permanently removed. […]"

B. Evidentiary comment:

Evidence consisting of documents or statements of a plan may particularly be used together with evidence of actions which appear to be the implementation of that plan, as below: P.2.3.

M.P.3.2. Evidence of actions taken by a group in implementation of a stated, reported etc purpose.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-T, Judgement (TC), 17 October 2003, para. 986 :

"986. The Trial Chamber finds, however, that the events that unfolded in Bosanski Samac before and after the takeover bear close similarity to what was envisaged in the above-mentioned instructions. [..]

[B. Evidentiary comment:]

M.P.3.3. Evidence of institutions, structures, meetings for the carrying out of a common purpose.

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1051:

"1051. The Trial Chamber cannot determine with precision when the plan to murder was formed. However, immediately prior to the third meeting held at the Hotel Fontana, around 10.00 a.m. on 12 July, security personnel were already discussing the planned execution of the Bosnian Muslim men from Potocari. Specifically, Momir Nikolic, Chief of Security and Intelligence of the Bratunac Brigade, and his superior Popovic, Chief of Security of the Drina Corps, met outside the Hotel where Popovic informed Nikolic that the able-bodied men within the crowd of Bosnian Muslim civilians would be separated, temporarily detained in Bratunac, and killed shortly thereafter. Popovic advised Momir Nikolic that he was to assist in this operation. Popovic and Nikolic were joined by Kosoric, Assistant Chief of Staff for Intelligence in the Drina Corps, and they went on to discuss some of the logistics of the operation, in particular what locations could be used for the detention and killings."

Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-T, Judgement (TC), 17 October 2003, para. 986, 989:

"986. […]The Trial Chamber is thus satisfied that, on a horizontal level, the participants in the joint criminal enterprise acted pursuant to a common plan to set up institutions and authorities to persecute non-Serb civilians in Bosanski Samac Municipality. On 29 February 1992, the Assembly of the Serbian People of the Municipality of Bosanski Samac and Pelagicevo was established, pursuant to the recommendation of the National Assembly of Republika Srpska.²²⁶⁷ In a meeting of the Municipal Assembly of Bosanski Samac and Pelagicevo in Obudovac on 28 March 1992, the Assembly elected the representatives of the Executive Board of the Serbian Municipality and Stevan Todorovic as the head of police. Also, in a meeting in March 1992, the Serbian Municipal Assembly decided that the President and the Vice-President of the Municipality and the President of the Municipal Board of the SDS should establish a Crisis Staff in case the war broke out. On 15 April 1992, a Crisis Staff was duly appointed in Bosanski Samac, and Blagoje Simić, the President of the SDS Municipal Board in Bosanski Samac, became its President. After the takeover it became clear that the Crisis Staff issued decisions and orders in accordance with decisions adopted by the Republika Srpska, that included an Order prohibiting political activities on the territory of Bosanski Samac Municipality,²²⁶⁸ and implementation of Instructions for the Work of the Municipal Crisis Staffs of the Serbian People.²²⁶⁹"

"2267. Exhibit P124.

2268. Exhibit P91.

2269. Exhibit P128."

"989. On 15 April 1992, the members of the Municipal Assembly and its Executive Board met in Obudovac, among them Stevan Todorovic, Blagoje Simić, Milos Bogdanovic, Savo Popovic, Dusan Tanasic, Ivan Ivanovic, "Crni", and Mirko Jovanovic. Blagoje Simić informed the others that he had arrived from a meeting with Lt. Col. Stevan Nikolic who had informed him about an impending attack by Croat and Muslim forces from Croatia with the assistance of local Croat and Muslim units from Bosanski Samac, and that the 17th Tactical Group intended to prevent this attack. Blagoje Simić related to them that Lt. Col. Stevan Nikolic said that he would jointly with the army prevent this incursion. Lt. Col. Stevan Nikolic also insisted that the Crisis Staff meet in Crkvina the following night on 16 April 1992. The Trial Chamber is satisfied beyond reasonable doubt that Blagoje Simić was in Crkvina in the early morning hours of 17 April 1992."

B. Evidentiary comment:

While evidence of institutional arrangements may be evidence of a common purpose, both the ICTY and ICTR have indicated that there is no requirement that the group be formally organised in a military, political or administrative structure (Tadić Appeals Chamber at 227, Ntakirutimana Appeals Judgment, para. 466).

M.P.3.4. Evidence of preparations carried out together by a group.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-T, Judgement (TC), 17 October 2003, para. 988:

"988. Prior to the takeover, members of the joint criminal enterprise worked together in preparation of the takeover of the town of Bosanski Samac as part of the common plan of persecution. The municipal section of the Ministry of Defence (Secretariat for National Defence), represented by Milos Bogdanovic, together with Stevan Todorovic, as a member of the command of the 1st Detachment, pursuant to an order of the 1st Battalion of the 17th Tactical Group, participated in sending young men for military training to Ilok in mid-March 1992.²²⁷⁰ The trainees at Ilok were instructed by highly skilled members of "special units ".²²⁷¹ On 11 April 1992 the paramilitaries arrived in Batkusa in JNA helicopters.²²⁷² Among the group of 50 men, 30 came exclusively from Serbia and the other 20 people were from Samac Municipality who were trained in Ilok.²²⁷³ "Crni", "Lugar" and "Debeli" were a part of this group.²²⁷⁴ Maksim Simeunovic, Chief of Intelligence and Security for the 17th Tactical Group, Mico Ivanovic, Commander of the 1st Detachment, Major Brajkovic, the Chief of Staff of the 17th Tactical Group, and Stevan Todorovic, were present for the arrival of the paramilitaries.²²⁷⁵ The command of the 1st Detachment then made practical arrangements for them.²²⁷⁶ When a meeting was held on 12 April 1992 in Donji Zabar, Stevan Nikolic, Stevan Todorovic, Mico Ivanovic, Blagoje Simić, Simo Jovanovic "Crni" and "Debeli" were present to discuss the arrival of the paramilitaries.²²⁷⁷"

"2270. Simo Jovanovic, Rule 92bis Statement, para. 7; Milos Savic, Deposition T. 378; Aleksandar Jankovic, Rule 92bis Statement, paras 9-10.

2271. Aleksandar Jankovic, Rule 92bis Statement, para. 10; Milos Savic, Deposition T.378.

2272. Sulejman Tihic, T. 1343; Dragan Lukac, T. 1612-16; Stevan Todorovic, T. 9040; Blagoje Simić, T. 12518; Veselin Blagojevic, T. 14030-01; Miroslav Tadić , T. 15190-91; Maksim Simeunovic, T. 15856-57; Jovan Erletic, T. 19666; Jovo Savic, T. 17016-17; Radovan Antic, T. 16827; Simo Zaric, T. 19162-63.

2273. Stevan Todorovic, T. 9042-43.

2274. Stevan Todroovic, T. 9040.

2275. Maksim Simeunovic, T. 15995-56; Stevan Todorovic, T. 9041, T. 10095-96.

2276. Stevan Todorovic, T. 9041, T. 9953-54, T. 10094-96; Radovan Antic, T. 16907.

2277. Stevan Nikolic, T. 18452, T. 18604; Maksim Simeunovic, T. 15999-16001."

[B. Evidentiary comment:]

M.P.3.5. Evidence of actions taken by a group in unison or in a cooperative or systematic manner.

Prosecutor v. Vlastimir Dor&#273ević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 138-139:

"138. With regard to Dordević’ s first submission, the Appeals Chamber emphasises that in order to conclude on the existence of a common purpose, it is not required to establish that a plurality of persons acted in unison.406 What is required to be established is "that a plurality of persons shared the common criminal purpose".407 The existence of such a common criminal purpose, particularly one that has not been previously arranged or formulated but materialised extemporaneously, may be inferred "from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise".408 In other words, it is not necessary to establish that joint criminal enterprise members acted in unison in order to reach a conclusion on the existence of the common purpose.

139. In the present case, the Trial Chamber concluded that there existed "a plan, involving a plurality of persons, to modify the demographic balance of Kosovo by a campaign of terror and violence, and that these persons participated in the common purpose and shared the intent to commit such crimes".409 It based this conclusion on, inter alia, the "scale of the operations across Kosovo, the pattern of crimes committed against Kosovo Albanian civilians, and the multitude of different units of the VJ and MUP involved in such actions".410 In support of this conclusion the Trial Chamber referred to several factors, inter alia, evidence regarding the establishment and functioning of the Joint Command to plan and coordinate operations of the MUP and VJ in Kosovo, minutes of meetings of MUP and VJ organs where joint operations were planned and ordered, orders effectuating such plans and evidence that the plans were implemented on the ground, monitored, and reported on by the same persons, and the fact that at least some JCE members were directly involved in the concealment of crimes committed pursuant to the common plan.411 In addition to the above factors, the Trial Chamber also noted that the evidence adduced in the case allowed it to conclude that the members of the JCE acted in unison to implement the JCE.412 The Appeals Chamber finds that even if the MUP was not re-subordinated to the VJ, Dorđević has failed to show how this would vitiate the Trial Chamber’s conclusion on the existence of the JCE. Therefore, beyond merely disagreeing with the Trial Chamber’s findings, Dorđević has failed to demonstrate that they are erroneous."

406 Brđanin Appeal Judgement, para. 430, and references cited therein. Contra Dordević Appeal Brief, para. 91.

407 Brđanin Appeal Judgement, para. 430, and references cited therein.

408 Krajišnik Appeal Judgement, fn. 418, and references cited therein.

409 Trial Judgement, para. 2128.

410 Trial Judgement, para. 2128.

411 Trial Judgement, para. 2126.

412 The Trial Chamber considered: (i) evidence on the establishment and "functioning" of the Joint Command to plan and coordinate the MUP and VJ; (ii) minutes of meetings of the VJ Collegium, the Supreme Defence Council, the VJ General Staff, the MUP Collegium, and the MUP Staff for Kosovo, where the joint operations were planned and ordered; (iii) orders effectuating the plans; (iv) evidence that such plans were implemented on the ground, monitored and reported on by the same persons; and (v) that at least some JCE members were directly involved in the concealment of crimes (Trial Judgement, para. 2126).

A. Legal source/authority and evidence:

Prosecutor v. v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-T, Judgement (TC), 31 March 2011, para. 586:

"586. The Chamber considers that the gathering of Interahamwe and Conseiller Bizimungu at the sector office, the subsequent arrival of Gatete with Bourgmestre Mwange, and the timely arrival of further Interahamwe, as well as the subsequent attacks on Tutsis in Rwankuba sector, which intensified as the day progressed and involved a range of assailants, could not have been achieved without considerable organisation. The presence of local authorities such as Conseiller Bizimungu and Bourgmestre Mwange, as well as a prominent figure such as Gatete, who was respected and well-known in Murambi commune by virtue of his former position as bourgmestre there and his post at the time in a national ministry, provided direction and encouragement to the Interahamwe prior to the attacks."

Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 673-675:

"673. The Chamber has determined that the initial attack on the Mujawayezu home, involving Interahamwe and armed civilians, occurred between 6.30 and 7.00 p.m. on 23 April 1994. The residents of the home, with the assistance of their neighbours, succeeded in fending off Interahamwe and armed civilians. Approximately 30 minutes later, Hategekimana arrived on foot at Mujawayezu’s residence, accompanied by four armed Ngoma Camp soldiers and the same Interahamwe and armed civilians who had been repelled in the first attack. Hategekimana and Conseiller Jacques Habimana demanded to see the identity cards of the residents. When searching the premises, the Interahamwe and Ngoma Camp soldiers found Salomé Mujawayezu, Alice Mukarwesa and Jacqueline Mukaburasa, whom they forced out of the house. All three women, who bore identity cards indicating their Tutsi ethnicity, were killed on the road immediately by a plurality of assailants. Among the Interahamwe and armed civilians who were involved in the attack and in the murders were Gatera, Célestin Maniragena, Jean-Marie Rugerinyange, Michel Murigande, Zairois as well as ?douard and Jacques Habimana.

Criminal Responsibility: Joint Criminal Enterprise

674. In the Chamber’s view, the Commander and the Conseiller acted with a common criminal purpose in coordinating a second attack by soldiers, Interahamwe and armed civilians, and in identifying the three Tutsi women to be killed. Hategekimana returned with the same four soldiers at approximately 11.00 p.m. that night to demand once again the residents’ identity cards and to verify their ethnicity. He ordered the residents outside to the road, which was strewn with the bodies of Tutsis. Close to their dead bodies were the victim’s identity cards, left by the assailants.

675. In the Chamber’s view, the attack on Mujawayezu’s home can only be described as a coordinated operation involving Hategekimana and two categories of assailants. On the one hand, there were Interahamwe and civilians, armed with traditional weapons; and, on the other hand, there were Ngoma Camp soldiers carrying firearms."

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 111 – 112:

"111. By February 1995, the movement of international convoys of humanitarian aid and supplies to Srebrenica and the other enclaves was being restricted by the VRS, through elements of the Bratunac Brigade,³⁴⁰ affecting both the delivery of humanitarian supplies and the rotation of DutchBat troops.³⁴¹ Throughout the spring of 1995, access to the enclaves was further restricted by the VRS,³⁴² causing a further deterioration of the living conditions for the population and a weakening of the military capability of UNPROFOR.³⁴³ Colonel Karremans testified that DutchBat and "the population during a prolonged period have been strangled and were cut of from everything a population and a unit need in human terms."³⁴⁴ The military capability of DutchBat was further hampered by the VRS refusal to allow soldiers re-entry into the enclave after their leave. This caused the number of soldiers to drop by at least 150 soldiers.³⁴⁵ In July 1995, DutchBat also had an extreme shortage of ammunition, again due to the blockade of supplies by the VRS.³⁴⁶

112. It was estimated that without new supplies almost half of the population of Srebrenica would be without food after mid-June.³⁴⁷ No fresh food, dairy products, flour products or meat had been permitted into the enclave since May.³⁴⁸ Due to the lack of produce, DutchBat could no longer keep its soup kitchen open to feed the most vulnerable in the population.³⁴⁹ As fuel supplies for DutchBat were halted, patrols were carried out by foot,³⁵⁰ and in some instances, on horse-back.³⁵¹"

"340. Momir Nikolic, T. 1634-35, Jovan Ivic, T. 9614-18, 9655. The Main Staff set up a system of permits. The Bratunac Brigade MP unit that was guarding the Cuti Most bridge could check the content of each convoy and refuse entry into the enclave. Cuti Most was the only entry into the enclave from the north. Momir Nikolic testified that the aim was to ensure that DutchBat would not be ready for combat and not be able to carry out its task in the enclave. The second aim was to make life within the enclave impossible for the civilian population. For checks of the convoys, see Zlatan Zelavonic T. 9468 and Ex. D210/1, NIOD Report, Part II, Ch. 6, sect. 17.

341. Colonel Karremans testified: "Everything a military man needs to perform his military duty was not present there and was intentionally kept behind. At General Mladic’s staff, they knew exactly what our applications were and what our needs were with regard to fuel, food, amunition, communication materials, and bandaging and drugs. And for a long period, none of that all ever arrived." Thomas Karremans, T. 11214-15, 11223-34. Leendert van Duijn testified to the lack of food and medical supplies following Bosnian Serb forces denying clearance to DutchBat convoys. Leendert van Duijn, T. 1158; Ex. P825, Secretary-General’s Report, paras 180, 233-35; Ex. P391, Bratunac Brigade Analysis of combat readiness in the first half of 1995, 4 July 1995, p. 8.

342. Jovan Ivic, T. 9621-33 and Ex. D 173/1, VRS Main Staff Notice of Agreement with the Realisation of the Request made by the Co-ordinating Board of the RS for Humanitarian Aid, dated 2 April 1995 ; Ex. D174/1, Main Staff Notice of Agreement with the UNHCR, Belgrade, Weekly Plan, dated 26 May 1995: Ex. D175/1, Main Staff, Notice of Agreement with the UNHCR, Belgrade, Weekly Plan, dated 30 June 1995 and Ex. D177.1/1, Main Staff Plan on Realisation of Approved, dated 19 May 1995.

343. Leendert van Duijn, T. 1158; Vincentius Egbers, KT. 2206. See also Agreed Facts, para. 44; Witness DP- 104, T. 10024-25 (closed session); Ex. P825, Secretary-General’s Report, para. 184, Ex. P391; Joseph Kingori, Ex. 782 tab 10; Ex. P831, ABiH Situation Report, 30 June 1995; Ex.P832, ABiH Combat Report, 5 July 1995, Ex. P834, ABiH Combat Report, 6 July 1995; Ex. P21A, Transcript of video compilation, p. 20. First meeting at Hotel Fontana, 11 July 1995. Colonel Karremans tells General Mladic that there is a need for medicine and food, because of the rejections of all clearances in the last four months.

344. Thomas Karremans, T. 11221.

345. Agreed Facts, para. 40. See also Ex. P825, Secretary-General’s Report, para. 235; Ex. D 210/1, NIOD Report, Part II, Ch. 6, sect. 20; Ex. P851, Report based on debriefing on Srebrenica, p. 17.

346. Ex. P851, Report based on debriefing on Srebrenica, p. 17.

347. Ex. D210/1, NIOD report, Ch. 4, sect. 9.

348. Ex. P825, Secretary-General’s Report, paras 235; Ex. D210/1, NIOD Report, Part III, Ch. 4, sect. 9.

349. Ex. D210/1, NIOD Report, Part III, Ch. 4, sect. 9.

350. Thomas Karremans, T. 11235-36 ; Ex. P825, Secretary-General’s, para. 229.

351. Vincentius Egbers, KT. 2205; Ex. D210, NIOD Report, Part II, Ch. 6, sect. 20."

Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-T, Judgement (TC), 17 October 2003, para. 987, 990 – 991:

"987. The Trial Chamber does not consider it necessary to make a finding on when the common plan at first was conceived, but instead infers the common plan from all the circumstances. There is sufficient evidence to conclude that participants in the joint criminal enterprise acted in unison to execute a plan that included the forcible takeover of the town of Bosanski Samac, taking over of vital facilities and institutions in the town, and persecuting non-Serb civilians in the Municipality of Bosanski Samac, within the period set forth in the Amended Indictment. This common plan was aimed at committing persecution against non-Serbs, including acts of unlawful arrest, detention or confinement, cruel and inhumane treatment, deportation and forcible transfer, and the issuance of orders, policies and decisions that violated fundamental rights of non-Serb civilians."

"990. The takeover was conducted on 17 April 1992 in the town of Bosanski Samac by Serb police, paramilitaries. Members of the 17th Tactical Group of the JNA were present in town. Blagoje Simić telephoned Lt. Col. Stevan Nikolic on the morning of 17 April 1992 to inform him that the Crisis Staff of the Serbian Municipality of Bosanski Samac had been established, and that with the assistance of the Serb paramilitaries and the police, the Crisis Staff had occupied the most important facilities in town in order to takeover authority in Bosanski Samac. After this telephone conversation, Lt. Col. Stevan Nikolic ordered the 4th Detachment at 6. 00 a.m. to be in a state of combat readiness, and to participate in the collection of weapons.

991. Following the takeover of the town of Bosanski Samac, non-Serbs were arrested and detained by Serb police and paramilitaries, with the assistance of some members of the 4th Detachment, where they were subject to cruel and inhumane treatment, and interrogations. Non-Serbs were further subjected to acts of deportation and forcible transfer. The common goal to commit these acts of persecution could not have been achieved without the joint actions of the police, paramilitaries, 17th Tactical Group of the JNA and Crisis Staff: No participant could have achieved the common goal on their own. The Crisis Staff was responsible for coordinating the administration of the Municipality with the civilian police. The Crisis Staff implemented orders and decisions throughout its term that supported the system of persecution of non-Serbs. The cooperation between Blagoje Simić and the paramilitaries is exemplified by Blagoje Simić’s travel to Ugljevik in order to discuss with the Corps Commander the replacement of Colonel ?urdevic by "Crni", and in October 1992, the War Presidency requested the return of "Crni" and the paramilitaries.²²⁷⁸ The cooperation of the War Presidency that had been established on 21 July 1992, pursuant to a decision of the Presidency of Republika Srpska,²²⁷⁹ and Miroslav Tadić , is proven by the fact that on 2 October 1992 it established the Committee for the Exchange of Prisoners, and Miroslav Tadić was a member of the Committee.²²⁸⁰"

"2278 - T. 9471.

2279 - Exhibit P72. The Decision was taken on 31 May 1992, however, it was implemented on 21 July 1992.

2280 - T. 9167-68, Exhibit P83."

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 319:

"319. The Prosecution alleges that the Omarska, Keraterm, and Trnopolje camps, as well as the municipal government of Prijedor, functioned as a joint criminal enterprise .⁵²⁶ However, the Trial Chamber does not have sufficient evidence on which to determine whether Keraterm and Trnopolje camps, or the municipality of Prijedor, functioned individually or collectively as a joint criminal enterprise. It does, however, have an enormous amount of evidence on which to conclude beyond a reasonable doubt that Omarska camp functioned as a joint criminal enterprise. The crimes committed in Omarska were not atrocities committed in the heat of battle; they consisted of a broad mixture of serious crimes committed intentionally, maliciously, selectively, and in some instances sadistically against the non-Serbs detained in the camp."

"526. Prosecution Pre-Trial Brief, paras 109 and 112. The Trnopolje camp is not mentioned in these paragraphs."

Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, para. 120:

"120. There is no dispute that the Appellant sought certain information from Witness A in the events relevant to this case. There is also no dispute that the various physical attacks in the Large Room and in the Pantry were not committed by the Appellant, but by Accused B. According to the Trial Chamber's factual findings,¹⁶⁶ the Appellant was present both in the Large Room and the Pantry interrogating Witness A while the offences charged in the Amended Indictment took place. The Appeals Chamber agrees with the Prosecutor's submission that the events in this case should not be artificially divided between the Large Room and the Pantry, as the process was a continuum and should be assessed in its entirety. Once the abuses started and continued successively in two rooms, the interrogation did not cease. There was no need for evidence proving the existence of a prior agreement between the Appellant and Accused B to divide the interrogation into the questioning by the Appellant and physical abuse by Accused B. The way the events in this case developed precludes any reasonable doubt that the Appellant and Accused B knew what they were doing to Witness A and for what purpose they were treating her in that manner; that they had a common purpose may be readily inferred from all the circumstances, including (1) the interrogation of Witness A by the Appellant in both the Large Room while she was in a state of nudity, and the Pantry where she was sexually assaulted in the Appellant's presence; and (2) the acts of sexual assault committed by Accused B on Witness A in both rooms, as charged in the Amended Indictment. Where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that there was no common purpose is plainly unsustainable."

"166. Judgement, paras. 124-130."

[B. Evidentiary comment:]

M.P.3.6. Evidence of acts which occur on a widespread or systematic basis.

A. Legal source/authority and evidence:

Prosecutor v. Milan Milutinovic et.al, Case No. IT-05-87-T, Judgement Vol III (TC), 26 February 2009, paras. 17 and 95:

"17. The Prosecution has presented a great deal of evidence in order to try to prove the existence of a common plan, design, or purpose. In the Chamber’s view, the most compelling evidence of a common plan, design, or purpose is that which pertains to the pattern of crimes in 1999. The Chamber therefore will deal with this evidence first in its discussion. After that, the Chamber will also deal with other evidence relevant to the second element."

"95. Based upon the evidence analysed above and the relevant evidence in the sections below relating to the responsibility of the Accused (excluding the four Accused’s interviews with the Prosecution cited therein), the Trial Chamber finds that the common purpose of the joint criminal enterprise was to ensure continued control by the FRY and Serbian authorities over Kosovo and that it was to be achieved by criminal means. Through a widespread and systematic campaign of terror and violence, the Kosovo Albanian population was to be forcibly displaced both within and without Kosovo. The members of the joint criminal enterprise were aware that it was unrealistic to expect to be able to displace each and every Kosovo Albanian from Kosovo, so the common purpose was to displace a number of them sufficient to tip the demographic balance more toward ethnic equality and in order to cow the Kosovo Albanians into submission."

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 paras. 653, 660:

"653. […] Importantly, however, such a policy need not be formalized and can be deduced from the way in which the acts occur. Notably, if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts, whether formalized or not. Although some doubt the necessity of such a policy the evidence in this case clearly establishes the existence of a policy."

"660. As discussed, this Trial Chamber has found that an armed conflict existed in the territory of opstina Prijedor at the relevant time and that an aspect of this conflict was a policy to commit inhumane acts against the civilian population of the territory, in particular the non-Serb population, in the attempt to achieve the creation of a Greater Serbia. In furtherance of this policy these inhumane acts were committed against numerous victims and pursuant to a recognisable plan. As such the conditions of applicability for Article 5 are satisfied: the acts were directed against a civilian population on discriminatory grounds, they were committed on both a widespread basis and in a systematic fashion pursuant to a policy and they were committed in the context of, and related to, an armed conflict."

M.P.3.7. Evidence of reception of the accused at the scene of the crime.

Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-77-T, Judgement (TC), 18 December 2008, para. 408:

"408. With respect to whether the Accused shared the common purpose of killing Tutsi, the Chamber recalls that the Accused arrived at the massacre site with the assailants. He, as well as the bourgemestre and Jaribu, met with, and addressed the assailants who then applauded and immediately commenced their attack. The assailants’ applause indicates to the Chamber that the Accused’s view, as well as that of the bourgmestre and Jaribu, was received well by the assailants. Furthermore, the Accused did not leave the massacre site until the after attack had commenced. The Chamber therefore considers that the Accused, the bourgmestre, Jaribu and the assailants shared the common purpose of killing Tutsi, thus being members of the basic form of JCE."

B. Evidentiary comment:

This means of proof appears problematic as it seems to imply that a common purpose must exist in every case of a crime against humanity (except in the unlikely case that a crime against humanity is planned by a single individual). The Trial Chamber found the existence of "a policy" in the context of its discussion of whether this was a requirement for a crime against humanity, not in the context of whether a joint criminal enterprise existed. However, the Appeals Chamber subsequently referred to this finding as a basis on which to conclude that such an enterprise did exist: Tadić Appeals Chamber, para. 230, especially footnote 294, which refers to paragraph 660 of the Trial Judgment.

M.1.4. The common purpose included an element of criminality

A. Evidentiary comment:

Article 25(3)(d) requires that when the group committed or attempted to commit a crime it did so acting with a common purpose. It is unclear how the Court will interpret this phrase. However the use of words appears to suggest that the crime committed or attempted must have been in pursuit of, or at least in some other way connected with, the common purpose. This is likely to be a unique requirement. Under the ICTY jurisprudence the common plan or purpose must itself amount to or involve the commission of a crime, and this would appear to be a somewhat different approach to the relationship between the crime and the purpose. For this reason the ICTY jurisprudence in this area is unlikely to be helpful.